If this opinion indicates that it is “FOR PUBLICATION,” it is subject to 

revision until final publication in the Michigan Appeals Reports.

-1-

S T A T E O F M I C H I G A N

C O U R T O F A P P E A L S

RAPHAELA ALLEN, Legal Guardian of MACK 

KELLY, III,

Plaintiff-Appellant,

UNPUBLISHED

September 22, 2022

v No. 357231

Oakland Circuit Court

SPRING LOADED I, LLC, LC No. 2019-177801-NO

Defendant-Appellee.

Before: RONAYNE KRAUSE, P.J., and JANSEN and SWARTZLE, JJ.

RONAYNE KRAUSE, P.J. (concurring)

I concur in the result reached by the majority. However, I do so on the basis of slightly 

different reasoning.

First, although the Trampoline Court Safety Act, MCL 691.1731 et seq., bars claims for 

injuries arising out of the risks necessarily inherent in trampolining or in properly-maintained 

trampoline courts, I do not believe it bars claims based upon improperly installed or maintained 

trampoline court equipment. The majority correctly observes that participants in recreational 

activities inherently accept the risks inherent in that activity. Ritchie-Gamester v City of Berkley, 

461 Mich 73, 87; 597 NW2d 517 (1999). Furthermore, MCL 691.1736 outlines some of the 

specific risks inherent in trampolining that participants must accept. However, Trampoline court 

operators are expressly required to comply with certain safety design and maintenance standards. 

MCL 691.1733(b)-(c). The risks inherent in an activity do not necessarily include risks caused by 

improper design or maintenance of that activity’s facilities. Because plaintiff has alleged improper 

design or maintenance, I would not hold that her claim is necessarily barred by the Trampoline 

Court Safety Act.

Furthermore, I find it necessary to address plaintiff’s spoliation of evidence argument. The 

merits of that argument are somewhat unclear. On the one hand, it is difficult to say that an estate 

sale is an entirely voluntary act, and the estate sale occurred after discovery had closed. 

Conversely, the estate sale occurred after the trial court specifically informed the parties that it 

wanted photographs of the actual trampolines, implicitly making access to the actual trampolines 
-2-

a matter of concern to both parties. At a minimum, it is not obvious that plaintiff should not be 

entitled to an adverse inference because of the loss of the trampoline equipment that was in 

defendant’s possession.

However, pursuant to Trupiano v Cully, 349 Mich 568, 570; 84 NW2d 747 (1957), the 

party with the ultimate burden of proof cannot establish a claim on the basis of such an inference 

alone. In response to a motion for summary disposition, the non-moving party may not rely on a 

mere promise to produce evidence in support of a claim at trial, but rather must present evidence 

or specific facts establishing that there is a genuine question of material fact for trial. Maiden v 

Rozwood, 461 Mich 109, 120-121; 597 NW2d 817 (1999). In other words, plaintiff was required 

to present affirmative proof in addition to any adverse inference showing that the trampoline court 

was improperly designed or maintained. In response to questioning from the trial court, however, 

plaintiff largely refused to do so, pledging that she would produce such evidence at trial, seemingly 

in the form of rebuttal witnesses. Otherwise, she presented only an unsupported design-defect 

theory based on speculation, and she also presented what the trial court reasonably described as an 

untenable res ipsa loquitur argument. Where there are risks necessarily inherent in an activity, the 

fact that a participant sustains an injury is not, by itself, enough to show that there was a defect in 

the premises.

I do not condone the loss of the trampoline court equipment. Nevertheless, because 

plaintiff was obligated to present affirmative proofs in support of her claims irrespective of her 

entitlement to an adverse inference, and because plaintiff failed to establish that she had any such 

affirmative proofs in response to defendant’s motion for summary disposition, I am constrained to 

conclude that summary disposition was correctly granted in defendant’s favor.

/s/ Amy Ronayne Krause